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On Outlawing Abortion: I Have a Question

The Utah state legislature is looking to pass a law that outlaws abortion. (Thanks to Matt Evans at T&S for the pointer.) In line with the Church’s position on abortion, it would allow for three exceptions. A woman could have an abortion if the pregnancy endangered her life (or her health, in a major and permanent way), or if it resulted from incest or rape.

If this law were passed, I wonder if this last exception might not be problematic. Of the three, it’s the most difficult to verify. A doctor can determine whether a woman’s health is in danger as a result of the pregnancy (setting aside for the moment any argument about how much health risk is enough to warrant an abortion). And a DNA test can indicate whether incest occurred.

But rape, that can be a lot more difficult. While many rapes are probably attested to by a lot of evidence, for at least some rapes, the evidence likely boils down to the testimony of the victim. And herein lies the problem.

If a woman can get an abortion by saying she was raped, a woman who has consensual sex and then decides she might want to get an abortion if she got pregnant as a result has an incentive to falsely claim she was raped. But an even larger problem than women falsely claiming rape is that attorneys representing men accused of rape will know that women have this incentive. So, one would suspect, they will bring it up at every opportunity, suggesting that perhaps a victim of rape is just claiming rape in order to be able to get an abortion should she get pregnant.

I don’t know law at all, but my understanding is that the legal treatment of rape victims has changed for the better just in the last few decades. We’ve moved from an approach where women who say they were raped are assumed to either be lying or to have somehow brought the rape on themselves, to an approach where women who say they were raped are assumed to be telling the truth and are not though to be to blame. I wonder, though, if the incentive to falsely claim rape might not lead to a return to bad treatment of rape victims; skeptical judges and juries may think that victims are just claiming rape in order to keep their abortion options open. While some women may actually do this, I would guess that their number would be dwarfed by the number of real rape victims who would suffer worse treatment because of this suspicion about their motives.

I don’t know what the solution to this problem is. Am I overlooking something obvious? What would you suggest?

30 thoughts on “On Outlawing Abortion: I Have a Question”

Thanks for bringing this up Ziff. Like you, I find this issue of a “rape clause” questionable. I have often tried to figure out how such a clause could be legally viable if abortions were made illegal. Along with the thoughts you express regarding how rape victims might be treated and believed, I’ve tried to wrap my mind around how it would work. Would a woman be allowed to have an abortion simply by claiming she was raped, or would she first have to prove it in a court of law? If the latter, the baby may well be born before the courts get around to ruling on such a case, given the time to find the perpetrator plus establish times for a hearing, trial, etc. If the former, what would happen if a woman were allowed to have the abortion but then could not prove in court that she was raped? Could she then be charged with murder?

And if a woman can get an abortion simply by claiming she was raped without needing any form of proof at any point in time, even pregnancies from consensual sex, as you pointed out, could be aborted with a claim of rape. It seems likely that claims of rape would escalate greatly overnight with the passage of any such legislation. And I agree that this scenario could be extremely detrimental when attempting to convict a rapist.

I just can’t see how a rape clause could possibly be enforced. Maybe I’m missing something too, but it seems to me that any attempt to illegalize abortion will have a negative impact on rape victims.

I think the social pressures of family and friends who know a woman, or fear of embarrassment will keep the sinister from happening most of the time.

That may not have made sense. What I mean is that you make it sound like your fear is that every woman who has unprotected sex who wants to keep the abortion option open will claim rape immediately. While I could see it happening if she already knows she’s pregnant (which is clearly not every time one has sex), she would then have to at least make the formal accusation, and in most cases it may not be hard to find out who she’s been sleeping with. I guess it’s a slippery slope either way, but I doubt it would be a common occurrence.

My brother-in-law is a law student right now and told me that it is not legally possible for a husband to rape his wife. Rape, by definition, cannot occur between husband and wife (although that seems like another way the law is sexist) This brings up another aspect of Utah’s proposed law that could be challenged in court, I suspect.
But, Ziff, I’m mostly surprised by this law because I didn’t think such a law would be constitutional. (ala Roe) Any ideas here?

Under the common law, it was indeed legally impossible for a man to rape his wife. However, that common-law baseline has been changed by statute in every U.S. jurisdiction. Changing old, sexist rape laws was a major project of feminist lawyers and law professors (including Ruth Bader Ginsburg) in the 70s.

Not that all of the current statutes are particularly great for rape victims, but as a general matter thet do overrule the old common-law rule regarding marital rape.

Here’s a direct quote from the latest ABA report on women and the law:

Question 99 What is “spousal rape”?

Answer Under English common law, a man could not be charged with rape of his wife, because rape was defined as illegal sexual contact, and sexual activity between husband and wife was lawful. In 1975, South Dakota became the first state to abolish a blanket spousal exception to rape. As of 1993, every state and the District of Columbia had eliminated the marital exception, making it possible for one spouse to press rape charges against the other. However, many states statutes still require a significantly higher level of force to be used against the victim when the perpetrator is a spouse for a charge of rape to be sustained.

Tam, thanks for bringing up the question of what level of accusation or proof would be required to get the rape exemption. I hadn’t thought of that, but as you point out, this further complicates the issue.

Cantinflas, I think you may be misunderstanding me. Sorry if I wasn’t clear. My major concern isn’t that women will claim rape to get abortions. It is that women who actually are raped will be less believed because people will think they’re just claiming rape to keep open the possibility of getting an abortion.

Jessawhy, I think that it used to be that marital rape wasn’t considered a crime, but I thought most (all?) US states had changed their laws to punish it. For example, from the Utah code, section 76-5-402:

1) A person commits rape when the actor has sexual intercourse with another person without the victim’s consent.
2) This section applies whether or not the actor is married to the victim.

It sounds to me like it would be a law on paper and not enforceable, like an anti-sodomoy law, or the new law in Texas that says High School Dancers can’t do “suggestive moves” while they cheer. For Rape, I think it would be like saying you are gay to get out of the military. People say they are gay to get out of the military who aren’t gay. I mean, you could say you were raped, but unwilling to do anything about it do to mental trauma, and I’d think they’d still have to give you the ticket to get the abortion.

I”ve been thinking about this too, and I don’t see how it could be enforced, at least not well. While I think abortion is a rather barbaric procedure (and I wish there wasn’t so much demand for abortion-on-demand), no way would I say that a woman or girl MUST carry to term a product (see, I”m dehumanizing the fetus, I admit) of rape or incest. I, too, worry that the hassle and embarassment of having to go through a bunch of legal channels for a crime victim will only add to the trauma. OTOH, I think abortion is also more of a trauma for women than is generally admitted. Just thinking out loud here. I guess the ideal of “safe, legal, and rare” is operative for me. I am so very conflicted.

Ziff, if a woman really wanted to “keep her options open” by claiming rape, then she’d basically have to claim rape every time she had unprotected sex. (She’s not going to know for another month or more whether she’s pregnant.) That tactic seems unweildy for a normal, sexually active person.

In addition, there are good reasons why a woman would not falsely claim rape.

First, rape victims are still viewed negatively by some elements of society. The woman would be taking on herself a heavy emotional burden.

Second, rape allegations have important real-world consequences that are not incurred lightly. The man in question could be subject to criminal charges, and may end up in jail. Meanwhile, the woman is going to have to be discussing the topic for the next few years, minimum, talking with prosecutors, being cross-examined by defense attorneys, being subject to jury scrutiny, and so on. She’s going to have to do this while continuing to live her life in the community. As the recent high-profile Duke story shows, people are quite unforgiving of charges that end up being apparently false.

There are also real legal consequences that could attach to the woman who chose to make a false allegation. Making a false criminal allegation is typically itself a criminal act. If her allegations are really baseless, she could find herself in legal trouble over them.

In addition, she might be subject to tort actions for defamation, slander, false light, and the related privacy torts. False allegations of sexual misconduct are per se defamation in many jurisdictions, and almost certainly rises to the standard of outrageousness required in some other jurisdictions.

This isn’t to say that false rape claims would never happen. These would almost certainly happen in at least some cases. But I don’t think that they would be as subject to frequent misuse as your post suggests. (And I don’t see a way to protect rape victims, unless a rape exception does exist.)

Here’s one way it might work:
Nobody knows they’re pregnant until well after conception. In order for a woman to qualify for an abortion under the rape exception she would have to have reported the rape to police within a few hours or days of the event, well before she knows she’s pregnant. Even if there is not enough evidence that a rape took place to bring charges, she would qualify for an abortion under the rape exception. I can’t see how this kind of policy would cause problems for actual victims of rape.

I don’t think it would increase the incidence of false accusation, either. Under this kind of policy any false accusation of rape for the purpose of qualifying for abortion would be a preventative measure on the part of the accuser. Given all that reporting a rape entails, with all the swabbing and probing and photographing and giving statements to the police, this would be an extremely high-cost prophylactic for the accuser; much higher than obtaining a morning-after pill. In addition, most people’s sense of morality would stop them from falsely accusing someone.

In order for a woman to qualify for an abortion under the rape exception she would have to have reported the rape to police within a few hours or days of the event, well before she knows she’s pregnant. Even if there is not enough evidence that a rape took place to bring charges, she would qualify for an abortion under the rape exception. I can’t see how this kind of policy would cause problems for actual victims of rape.

In theory this sounds like an excellent policy. But my laywoman’s understanding is that rape is one of the most underreported crimes (is this true, social scientists?), that many women not surprisingly don’t feel up to going to the police to be subjected to all of the procedures described above.

Is it fair to require a rape victim who wants an abortion to report the rape to the police? (I’m genuinely asking; I’m not sure what I think.)

I’m still not convinced that the rape exception would not result in many false claims of rape.

“…rape victims are still viewed negatively by some elements of society.”

But then again, so are unwed mothers. I’m not sure if the stigma and societal censure for rape is worse than that for giving birth under “illegitimate” circumstances. Another factor to consider is the difficulty of pregnancy and the subsequent choice of raising the child vs. putting the child up for adoption. Women I know who have had an abortion were far more frightened at the thought of raising a child or putting the child up for adoption than they were at the thought of aborting their child. I think those fears would provide the impetus to lie in order to get an abortion.

“…if a woman really wanted to ‘keep her options open’ by claiming rape, then she’d basically have to claim rape every time she had unprotected sex.”

If I correctly understood the news report I heard this morning regarding the proposed legislation, a woman has 50 days to report a rape after the alleged incident. So, there’s no rush or immediacy to a woman claiming rape until she knows she’s pregnant. That opens the door for many women to claim a rape when there was not one.

“…most people’s sense of morality would stop them from falsely accusing someone.”

I’m not sure a woman would have to accuse someone in particular. If the option is open to simply claim she was raped, I think many women would do so to get out of the traumatic, desperate situation they feel they are in.

“…rape allegations have important real-world consequences that are not incurred lightly.”

“…Given all that reporting a rape entails, with all the swabbing and probing and photographing and giving statements to the police, this would be an extremely high-cost prophylactic for the accuser

This might serve as a deterrent to false claims of rape, but a lot hinges on what the expectations are regarding the reporting process. Does the proposed legislation require that any woman seeking an abortion under the claim that she was raped have to submit to rape procedures at the hospital and local precinct? If so, then there’s the ugly aspect raised by Eve– new legislation might put impregnated rape victims who prefer to deal with the rape quietly in a position to have it known against their will, either by reporting it so they can abort the pregnancy or by having the child. No woman should be forced to do that. Rape is a hell no one should have to endure but when it happens, the trauma to end a resulting pregnancy should be a private matter for the woman.

Kaimi and Tom,
I’m not so much concerned that women will use a claim of rape in order to get abortions; certainly for all the reasons you both cite, it’s likely rare that women will make a false accusation just to (potentially) get an abortion. Although Tam, I also like your point that if a full-fledged legal complaint need not be made in order to use the rape exemption, more women might use it, whether making true or false accusations.

What I’m concerned about, though, is that, regardless of how often it actually happens, the mere suspicion that some women are doing this will reduce the credibility of actual rape victims. And Eve, as you so well point out, the humiliation involved in reporting a rape already likely leads many women to choose not to say anything. The last thing rape victims who are already reluctant to speak up need to hear is that in addition to being humiliated, they will be suspected of lying because people will think they’re trying to get a “get out of pregnancy free” card.

Before Roe vacated all abortion laws, most states prohibited abortions but had exceptions for rape and severe risk to mother’s health. The key factor to determine the mother’s credibility, aside from any evidence, was her timing in notifying the authorities.

The timing factor effects all violent crime cases, including rape, whether or not they deal with abortion. The longer a victim waits before reporting a violent crime, the less credibility the detectives, prosecutors and judge place on their allegation. The result is that evidence becomes more important because the victim’s testimony is less credible.

At least in cases where a rapist impregnates the victim, she’d be carrying DNA that could identify her attacker.

I don’t find it particularly surprising; in a state where there’s a strong anti-abortion movement, at least a few affected legislators will have realized that giving teenagers access to the morning-after pill is going to reduce unwanted pregnancies, which will in turn reduce the number of abortions.

Moreover, if teens don’t have to ask their parents for permission to take emergency contraception, they don’t have to weigh the cost of the risk that they might possibly become pregnant against the almost certain parental sanction they’ll face if they indicate they’ve just been sexually active.

To answer Jessawhy’s second question about the constitutionality of Utah’s proposed law– I would think that it would not be found constitutional under Roe v. Wade and Planned Parenthood v. Casey. Casey essentially reinforced the law of Roe by emphasizing that a woman could have an abortion during the first trimester of pregnancy (before viability of the fetus) without undue interference by the State. The State could still interfere (regulating who does the abortion, etc.) but it just can be “undue,” meaning, the placing of “substantial obstacles” in the way of getting an abortion. Justice O’Conner wrote that the “woman’s right to terminate her pregnancy before viability is the most central principle of Roe v. Wade. It is a rule of law and a component of liberty we cannot renounce.” Utah’s law would go too far in the first trimester.

Even given the recent changes in the Court, it is unlikely that these core pronouncements are going anywhere anytime soon.

And in defense of your BIL, he probably meant the Model Penal Code which is what most Crim Law classes study and it does, in fact, carry a spousal rape exception. It should also be noted that while the majority, if not all, of the states have removed the spousal rape exception, 13 states do treat spousal rape differently than regular rape, through such things as a higher burden of proof.

Twag,
Thanks for answering the constitutional question and clarifying the marital rape matter.
I chatted online with BIL today and told him about my comment and the responses. I said next time I see him I’m going to beat him up. (that’s not against the law, is it?)
His response was, “This just proves that a little bit of knowledge about the law is a dangerous thing.”
So true.
Thanks to all of you who have much more information about all of this than me.

I agree with Ziff. Any potential benefit a woman could get from reporting a rape increases the level of skeptisism with which her claims are viewed. There are still substantial numbers of people who think that women ‘cry rape’ after merely regretting a sexual encounter, or that women frequently accuse men of rape simply to ruin the man’s reputation. Adding continued access to abortion to this list of so-called benefits is not going to help people take rape victims and their claims seriously.

Also, going through the legal steps to make submitting false accusations for abortion access more difficult or impossible is not going to remove from the public psyche the idea that such false claims are still a viable explanation for a rape we don’t want to believe happened. No one likes the idea that rape happens, and we are even more uncomfortable with the idea that rape happens to people who don’t deserve it somehow- because that means it could happen to me or to someone I love. We try so hard to convince ourselves that “even if something happened it wasn’t really rape” because then we’d have to come to terms with the uncomfortable reality that rape could effect us.

This post really made me think, because I have seen how difficult it is for rape victims who do report when I worked at a law firm. I couldn’t believe what one of the girls was subject to by the people who were purportedly trying to help her prove her claims.
When she was taken to the hospital she asked for a woman doctor to do the examination (she was only 16 years old) and because a woman doctor couldn’t be found, she refused to be examined. This of course was held against her, but I could really see her point of view. I remember how awful my first gyn. exam was, performed by an idiot intern (I bled after getting a pap smear, and it wasn’t until I got my next one a year later that I found this wasn’t normal!)
I remember reading in the Provo Daily Herald about a 17 year old girl who was raped by BYU football players. They invited her to their apartment, got her drunk, and gang-raped her. It was interesting to me how much the newspaper seemed to be on the football players side, despite the fact that there were convictions in the case. It described in detail the mother of one boy telling about what a good kid he was, and all about how the girl said she was glad that two of them ended up with lesser convictions, because she felt sorry for them. I was shocked that there seemed to be nothing about what a really disgusting crime this was.
But what really, really shocked me was that I was reading this at my in-laws house, with this in mind, and my mother-in-law looked over at what I was reading and said, “That girl should never have gone to their apartment! What was she thinking?” I couldn’t believe how much she was blaming the victim, but I found her attitude to be typical of people in the ward and community. I can’t help but think there are few Utah teenage girls who would say no when asked out by idealized BYU football players. When I was in young women’s, I remember a speaker at a fireside talking about how nice Ty Detmer, a neighbor, was to her young daughter and son. There are rape cases where the victim made a lot more mistakes than this one, yet this young Utah girl seemed to be getting so much of the blame.
Interestingly, I read in the New Yorker during the Kobe Bryant case that prosecutors in rape cases look for young men, not older more compassionate women like I’d think they’d want, because when they tell the scenario of what happened before the rape, young men follow the perpetrator and think, I wouldn’t do that, whereas women follow the victim’s scenario and think, she shouldn’t have done that…
I’ve heard that it’s really, really hard to get a rape conviction.

Any potential benefit a woman could get from reporting a rape increases the level of skeptisism with which her claims are viewed.

Exactly! Thanks for explaining the issue more clearly and succinctly than I did, Starfoxy.

And DD, thank you for offering some evidence that truthfully reporting rape is no picnic for women even now. It’s really bad when women are blamed for rape, even by people who concede that it was actually rape (“she shouldn’t have been there,” etc.).

This is an issue I have many a problem with. First of all, by outlawing abortion women loose yet another option to control their body. Secondly, the rape concern is a an excellent one. Most rapes are NOT reported. Women have a hard enough time dealing with this issue, let alone bringing in the police and attorneys. It is a very traumatic experience and the court system does not make it easy. SO, if women are not reporting the majority of rapes how many abortions currently are actually the result of an unreported rape and how many women would be forced to carry an unwanted child to full term if abortion were to be made illegal. How many women would experience the loss of their agency for not just a moment but then be reminded of it punished for nine whole months? Finally, what about agency? I am so sick and tired of people trying to protect women. Women do not need protection. We need power to exercise OUR God given agency. Should a woman choose to have an abortion, is it not her sin to deal with? Why does a government, which to my understanding is very republican…and in a way then…Mormon, feel the need to interfere on that decision. They are playing the part of Lucifer when they do this. I know this is very strong language, but people need to THINK! I understand and agree that abortion is wrong, but so is premarital sex and homosexuality. God gave us a country where the individual could have the option to use and express their agency to it’s fullest. To make abortion illegal does nothing but mock this gift. It takes this gift of individual agency, turns it’s nose up at it and says “women aren’t responsible enough to make desicions on their own. We (the government) need to be put in charge of their salvation”. This is evil to it’s fullest. This is exactly what the war in heaven was all about. Agency. Control of reproduction, of her body, is all part of a woman’s agency. Anyone who attempts to interfere with that is wrong. Dead wrong.

Lilith,
Believe it or not, many people who disagree with you actually are thinking. Your way of thinking isn’t the only way. Many, if not most, people who believe in legal limits on abortion have thought a lot about it and they can’t see a human fetus as anything other than something special and worthy of protection. For those people, it’s not only the life and body of a pregnant woman that needs to be taken into consideration, but those of the fetus as well.

Tom,
Of the fetus as well? Where does an aborted fetus wind up? I guess this must be the center of the debate. Where does life begin or end? Does it begin at conception or 1, 2, 3 etc. months into the pregnancy? When does a woman lose rights to her own body? Let me pose this question. The prophet has stated that in cases of incest, rape, or when the mother’s life is threatened, abortion is acceptable. If that’s the case, where does that fetus go? Does it get another chance? Does it go directly to heaven? If so, does it recieve different treatment then a fetus who is aborted by a mother who just simply didn’t want it? I believe in all of God’s mercy, that whatever the circumstances, a fetus will either a) get another chance, or b) wind up in heaven. Punishing a child for the sins of Adam’s or Eve’s transgressions is not part of God’s plan. With that said, I don’t see how outlawing abortion is going to benefit anyone. If a woman should choose to abort, that is her choice and her consequence, her sin. The life, body, and fate of that fetus, of that child, has ALREADY been taken into consideration. It’s called the Atonement.

The life, body, and fate of that fetus, of that child, has ALREADY been taken into consideration. It’s called the Atonement.

The same is true of infants, yet we don’t allow them to be destroyed.

I understand that you have your views based on your own moral sensibilities. Mine are different. All I want is for you to understand that just because people disagree with you it doesn’t mean that they aren’t thinking as hard as you, or are not as smart or compassionate as you are. In matters of morality and the law people have different sensibilities upon which they base their opinions.

The prophet has stated that in cases of incest, rape, or when the mother’s life is threatened, abortion is acceptable.

It’s ironic that you cite the authority of the LDS prophet in supporting your view that abortion should always be allowed when the LDS policy also states that abortion is not acceptable in most cases. If we don’t need to worry about the “life, body, and fate” of fetuses because the Atonement covers them, why would the prophets declare abortion to be unacceptable in most situations? It’s probably best for you to leave the prophets out of this because their policy does not support unlmited abortion.

When does a woman lose rights to her own body?

For people that view the fetus as another body and not part of the mother’s body, placing limits upon when that body can be destroyed is not a matter of infringing on a woman’s right to control her body because the body being destroyed in an abortion is not hers.

In addition, it seems that most people who do support legal limits on when fetuses are allowed to be destroyed also believe that under the law a woman should have the choice of whether or not to have children. So when a fetus comes about as a result of unchosen sex (rape) the woman should be allowed to destroy that fetus without legal repercussions. But when the fetus comes about as a result of chosen sex, limiting when that fetus can be destroyed does not infringe upon a woman’s ultimate right to choose whether or not to have children, it just places temporal limits on that choice. Some people find those limitations unacceptable. Others don’t. But having limitations in place is not the same thing as abolishing a woman’s right to choose when and if to have children.

“It’s probably best for you to leave the prophets out of this because their policy does not support unlmited abortion.”

And neither do I. That is not what it’s about. It’s about choice, about agency. Self-accountablity.

“when a fetus comes about as a result of unchosen sex (rape) the woman should be allowed to destroy that fetus without legal repercussions. But when the fetus comes about as a result of chosen sex, limiting when that fetus can be destroyed does not infringe upon a woman’s ultimate right to choose whether or not to have children, it just places temporal limits on that choice”

That is the problem. Many a time women cannot PROVE that a rape has occured. This can be due to all kinds of circumstances, eg. mental coercion, threats, manipulation, guilt, etc.
To outlaw abortion would put the burden of proof upon the raped woman, as if she didn’t already have enough to deal with.

To outlaw abortion would put the burden of proof upon the raped woman, as if she didn’t already have enough to deal with.

Thanks, Lilith, that’s exactly my point. But in most circumstances, where sex is not coerced, I agree with Tom that abortion seems unfair to the fetus.

I know the whole abortion issue is way more complex than this, and I was just hoping to raise this single little question about how an abortion ban that includes a rape exception might affect women reporting rapes. As that’s already been discussed, let’s put an end to this thread.